Research On The Identification Of The Abuse Of Dominant Position

Abuse of dominant position,along with monopoly agreement and concentration of business operators,constitute the three pillars of the anti-monopoly law.In recent years,China's antitrust law enforcement continues to strengthen.Cases of abuse of market dominance such as 360 vs.Tencent,Qualcomm,Tetra Pak give rise to much social concern.However,there are still some room for discussion in the legislation and judicial practice that prohibit the abuse of market dominance in our country's antitrust law.In light of the actual situation of our country and the needs of sustained and steady economic development in the future,this article attempts to solve the problems arising from the determination of abuse of market dominance in China,through analysis and comparison on the methods of and theoretical basis for abusing dominant market position.First of all,the article distinguishes and compares the market dominance and relative dominance and clarifies the standard of determination of market dominance,and then puts forward the concept that market dominance and relative dominance are both parallel concepts subordinate to market power.Market power refers to the fact that in the relevant market or a specific transaction process,an operator has the power to decide the conditions of the transaction in the market,and it is difficult for the counterparty of the transaction to refuse the transactional terms.Consequently,by analyzing the characteristics of the bilateral markets and the judgments of the 3Q case,the article puts forward that the theory of relative dominance can be applied,whilst determination of relevant market is less important.In determining the specific abusive behavior of market dominance,it is suggested that the doctrine of reason should be used as a criterion for further investigation.Finally,the article clarifies the forms of manifestations of abuse of market dominance and exempted situations,and puts forward suggestions on the definition of the relevant market under the Internet,determination of abuse of dominant market position,and the abuse of the market dominance.The article applies normative analysis,case analysis and comparative research methods.On the one hand,it defines the basic concepts and the features thereof,such as market dominance,relative market dominance and so on through the method of normative research,supplemented by classic cases for further explanation.On the other hand,the article reflects on the weakness of the Chinese law on the determination the abuse of market dominance,and then draws on the merits of foreign legislation and case law,and puts forward suggestion to improve China's Anti-Monopoly Law.